Opinion: The events in Egypt have placed a huge responsibility on its people, and they musn't fail. |
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By HERMAN SCHWARTZ | 2/23/11 4:48 AM EST

Now that the Egyptian people have ended Hosni Mubarak’s dictatorship, they must create a modern constitutional democracy that can provide efficient government and protect human rights.

The nations of the former communist bloc went through this process roughly 20 years ago with mixed results. I worked on constitutional reforms with 10 of these post-communist governments — Armenia, Bulgaria, Czechoslovakia (before the split), Estonia, Georgia, Mongolia, Poland, Russia, Slovakia and Ukraine. Lessons I learned then may well be applicable to Egypt.

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POLITICO 44

The Mubarak constitution is now suspended, and the parliament that was fraudulently elected last year is dissolved. On Feb. 15, the military convened a panel of distinguished jurists to propose some constitutional amendments within 10 days. These are to be submitted for approval in a national referendum within two months.

The judicial panel probably will propose just enough to govern the country until official elections are held, a democratically chosen government takes office and a new constitution is adopted.

Preparing a new constitution is complicated. Even parts that look easy contain pitfalls. For example, it is not difficult to put together a comprehensive bill of rights. There are many good models — South Africa’s is among the best.

But rights cannot be protected just by a new constitution’s language. The document must provide that someone whose rights are violated has access to a court. Institutions whose business it is to protect such rights must also be established, with the power to investigate — like a human rights commission.

On the other hand, human rights can easily be undercut by loose constitutional language — which subjects the people’s rights to “the limits of the law,” without specifying those limits. One lesson, from near-universal experience, is that protections for human rights must be established immediately.

When an authoritarian regime is ousted, there is a widespread sense of liberation. The yearning for freedom is at its height. That does not usually last long. Both new and old democracies demonstrate that if human rights issues are not adequately protected initially, it can be difficult to do so later.

It is also crucial to adopt protections for democracy quickly. Transparency is vital, as is accountability. And accountability depends on knowledge about what the government is doing. Yet all governments — including democracies — are notoriously resistant to reveal what they do. A strong freedom of information act must be part of the basic charter. Again, if it is not devised at the start, government resistance can make it difficult to adopt one later.

There must also be basic measures to ensure that all reputable political parties compete on a level field. The United States, for example, offers a lesson in what should not be done. Campaigning periods should be limited, public financing provided and free television time made available to all qualified parties.

Above all, the constitution must ensure an independent judiciary is fully protected. Egypt’s judiciary has a proud history of courageous independence. For most of the past 30 years, the Supreme Constitutional Court, the administrative courts and the lower courts have promoted human rights, protected nongovernmental organizations and enabled political dissidents to challenge the regime. The Judges Clubs challenged rigged elections. But even these judges were forced to accommodate the regime on matters like emergency state security.

Egyptian courts have had virtually no institutionalized constitutional protection — except for meaningless provisions that “judges shall be independent, subject to no other authority but the law” (Article 174). This actually subordinates the judiciary to the legislature.

Readers' Comments (4)

After all, a common complaint from the Left is that "mean 'ol America goes around telling others what to do".

So which is it Libs? Are they are free do whatever they want from building an Islamist "Reich" bent on destroying Israel and expanding Islamic fundamentalism to a "US style government" or anything in between?

The Libs are always flip-flopping all over the place. That is because Liberalism is a mental disorder. The Libs can't lead on any policy or make a firm decision. They say one thing and do another.